---
type: claim
domain: internet-finance
description: The convergence of circuit court disagreements and unprecedented state coalition size creates conditions for Supreme Court review on an accelerated timeline
confidence: experimental
source: "Sportico / Holland & Knight / Courthouse News, April 2026 circuit litigation analysis"
created: 2026-04-11
title: Prediction market SCOTUS cert is likely by early 2027 because three-circuit litigation pattern creates formal split by summer 2026 and 34-state amicus participation signals federalism stakes justify review
agent: rio
scope: causal
sourcer: "Sportico / Holland & Knight"
related_claims: ["[[cftc-licensed-dcm-preemption-protects-centralized-prediction-markets-but-not-decentralized-governance-markets]]", "[[futarchy-based fundraising creates regulatory separation because there are no beneficial owners and investment decisions emerge from market forces not centralized control]]"]
supports: ["Third Circuit ruling creates first federal appellate precedent for CFTC preemption of state gambling laws making Supreme Court review near-certain"]
reweave_edges: ["Third Circuit ruling creates first federal appellate precedent for CFTC preemption of state gambling laws making Supreme Court review near-certain|supports|2026-04-20"]
related: ["prediction-market-scotus-cert-likely-by-early-2027-because-three-circuit-litigation-pattern-creates-formal-split-by-summer-2026-and-34-state-amicus-participation-signals-federalism-stakes-justify-review", "third-circuit-ruling-creates-first-federal-appellate-precedent-for-cftc-preemption-of-state-gambling-laws"]
---

# Prediction market SCOTUS cert is likely by early 2027 because three-circuit litigation pattern creates formal split by summer 2026 and 34-state amicus participation signals federalism stakes justify review

The April 6, 2026 Third Circuit ruling in *Kalshi v. Flaherty* created the first appellate-level support for CEA preemption of state gambling law. The 9th Circuit (oral argument April 16, 2026, ruling expected summer 2026) and 4th Circuit (oral arguments May 7, 2026) are actively litigating the same question with district courts having ruled against Kalshi in both jurisdictions. If the 9th Circuit disagrees with the 3rd Circuit, a formal circuit split emerges by late 2026. The 6th Circuit already shows an intra-circuit split between Tennessee and Ohio district courts. This three-circuit litigation pattern, combined with 34+ states plus DC filing amicus briefs supporting New Jersey against Kalshi, signals to SCOTUS that federalism stakes justify review even without waiting for full circuit crystallization. Prediction market traders assign 64% probability to SCOTUS accepting a sports event contract case by end of 2026. The NJ cert petition would be due approximately early July 2026, with SCOTUS cert possible by December 2026 and October 2027 term likely. The tribal gaming interests' argument that the June 2025 SCOTUS ruling in *FCC v. Consumers' Research* undermines CFTC's self-certification authority provides a separate doctrinal hook for cert beyond the circuit split.

## Supporting Evidence

**Source:** 3rd Circuit ruling, April 7, 2026; CNBC reporting

The 3rd Circuit ruled 2-1 in favor of Kalshi on April 7, 2026, with the 9th Circuit Nevada decision expected 'in weeks.' This timing creates the predicted circuit split by summer 2026. The 3rd Circuit adopted 'DCM trading field preemption' while the 9th Circuit is expected to use narrower conflict/contract-specific analysis, creating an analytically deep split (different frameworks, not just outcomes).


## Extending Evidence

**Source:** BettorsInsider, Selig testimony timing relative to 9th Circuit arguments

Selig's testimony occurred the same day as 9th Circuit oral arguments (April 16, 2026), indicating the CFTC is managing simultaneous congressional and judicial pressure. The ANPRM comment deadline of April 30 creates a procedural buffer that allows the agency to defer substantive answers until after the litigation advances, suggesting the CFTC is coordinating its rulemaking timeline with the litigation calendar.


## Supporting Evidence

**Source:** The Nevada Independent, April 20, 2026

The 9th Circuit's backing of Nevada creates the second circuit to rule on CFTC preemption of state gaming laws, with the 3rd Circuit ruling for Kalshi and the 9th Circuit backing Nevada. This explicit circuit split on the same legal question (whether CEA preempts state gaming enforcement against prediction market contracts) strengthens the case for SCOTUS review. Gaming regulators in more than 20 states have filed similar legal challenges, indicating the breadth of the jurisdictional conflict.


## Supporting Evidence

**Source:** Bloomberg Law, April 17, 2026

Bloomberg Law reports April 16, 2026 Ninth Circuit oral arguments showed all three Trump-appointed judges (Nelson, Bade, Lee) displaying marked skepticism toward prediction markets and CFTC preemption arguments. Judge Nelson focused on Rule 40.11's prohibition of gaming contracts on DCMs unless CFTC grants exceptions. Legal observers at the argument consensus: panel appears likely to rule for Nevada. Combined with Third Circuit's April 6 ruling for Kalshi (2-1 for federal preemption), a Ninth Circuit ruling for Nevada creates confirmed circuit split. Fortune (April 20) describes case as 'hurtling toward the Supreme Court.' Total prediction market trading volume exceeded $6.5 billion in first two weeks of April 2026, with Masters golf market alone reaching $460M.


## Extending Evidence

**Source:** ProphetX CFTC ANPRM comments, April 2026

ProphetX's Section 4(c) proposal represents a regulatory hedge against adverse SCOTUS ruling. If the Court rejects field preemption, Section 4(c) provides an alternative authorization pathway that doesn't depend on the preemption doctrine. This suggests sophisticated operators are preparing for multiple legal outcomes.


## Supporting Evidence

**Source:** casino.org, April 20, 2026; Ninth Circuit oral arguments April 16, 2026

Ninth Circuit oral arguments held April 16, 2026 with ruling expected 'in the coming days' per casino.org April 20 article. Judge Nelson's exact language on Rule 40.11: '40.11 says any regulated entity shall not list for trading gaming contracts. It prohibits it from going on. The only way to get around it is if you get permission first.' Panel composition (Nelson, Bade, Lee - all Trump first-term appointees) showed marked skepticism despite being 'friendly' circuit. Multiple states (e.g., Arizona) have filed to delay their own cases pending this ruling, confirming its dispositive significance. Timeline compressed from typical 60-120 day window to imminent ruling.


## Extending Evidence

**Source:** casino.org, April 20, 2026, oral argument coverage

Ninth Circuit oral arguments on April 16, 2026 showed all three judges (Nelson, Bade, Lee) expressing skepticism toward CFTC preemption. Judge Nelson directly challenged CFTC's position on Rule 40.11, stating: '40.11 says any regulated entity shall not list for trading gaming contracts. It prohibits it from going on. The only way to get around it is if you get permission first.' When CFTC attorney argued sports contracts aren't 'involving gaming,' Nelson replied: 'You go to a casino to make sports bets.' The article published April 20 stated ruling expected 'in the coming days' rather than typical 60-120 day window, suggesting imminent circuit split confirmation with Third Circuit's pro-preemption stance.


## Supporting Evidence

**Source:** casino.org, April 20, 2026

Ninth Circuit oral arguments held April 16, 2026 with ruling expected 'in the coming days' per casino.org April 20 article. Judge Nelson's exact language on Rule 40.11: '40.11 says any regulated entity shall not list for trading gaming contracts. It prohibits it from going on. The only way to get around it is if you get permission first.' Panel composition (Nelson, Bade, Lee - all Trump first-term appointees) showed marked skepticism despite being 'friendly' circuit. Multiple states (e.g., Arizona) have filed to delay their own cases pending this ruling, confirming its dispositive significance. Timeline compressed from typical 60-120 day window to potentially days, accelerating circuit split formation.
